STATE OF KERALA v. ELISABUTH KURIAN & KERALA PUBLIC SERVICE COMMISSION

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY ,THE 20TH DAY OF DECEMBER 2018 / 27TH AGRAHAYANA, 1940** **LA.App..No. 458 of 2014** **AGAINST THE JUDGMENT AND DECREE IN LAR 29/2008 of SUB COURT,KOTTAYAM DATED 09-12-2013** ## **APPELLANTS/RESPONDENTS 1 TO 2:** - **1 THE STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM.** - **2 SPECIAL TAHSILDAR LA GENERAL, KOTTAYAM.** **BY SR.GOVERNMENT PLEADER SRI A.K. SUKUMARAN SRI.P.C.IYPE, ADDL. ADVOCATE GENERAL** ## **RESPONDENT/CLAIMANT & 3RD RESPONDENT:** - **1 SMT.ELISABUTH KURIAN W/O.THOMAS KURIAN, AMBATTU, MUTTAMBALAM VILLAGE, KOTTAYAM TALUK 686 002.** **2 THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY SECRETARY, KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM 695 004.** **BY ADVS. SRI.JAMES MATHEW SRI.C.JOSEPH JOHNY SRI.JOHN JOSEPH VETTIKAD SRI.JOSEPH ABRAHAM** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **LA.App..No. 458 of 2014** **2** ## **JUDGMENT** ## **R.Narayana Pisharadi, J** This appeal arises out of the judgment dated 9.12.2013 passed by the Sub Court, Kottayam in LAR No. 29/2008. 2. An extent of 17.72 Ares of land, with an old building therein, in Muttambalam Village was acquired for the use of the Kerala Public Service Commission. Notification under Section 4(1) of the Land Acquisition Act was published on 30.04.2005. The Land Acquisition Officer granted compensation for land by fixing the land value at Rs.63,976/-per Are. The Land Acquisition Officer also granted an amount of Rs.15,75,950/- as compensation for the building and Rs.400/- as compensation for the improvements in the land acquired. 3. Dissatisfied with the compensation granted by the Land Acquisition Officer, the owner of the land initiated reference proceedings. During the trial of the reference case, AW1 to AW4 were examined and Exts.A1 to A6 documents were marked on the side of the claimant. No oral evidence was adduced by the State or the requisitioning authority. Exts. R1 and R2 documents were marked on the side of the State. Ext. C1 series report and sketches **LA.App..No. 458 of 2014** **3** filed by the Advocate Commissioner were also marked. 4. The reference court refixed the value of the land at Rs.4,33,485/- per Are and enhanced the compensation for land at that rate. The reference court also enhanced the compensation for the building to Rs.25,73,475/-. Aggrieved by the award passed by the reference court, the State has come up in appeal. 5. We have heard the learned Government Pleader and also the learned counsel for the respondents. We have also perused the records. 6. The Land Acquisition Officer fixed the value of the land at Rs.63,976/- per Are based on Et.R1 document. The reference court found that Ext.R1 sale deed of the year 2003 in respect of a property, which is not similar and similarly situated as that of the acquired property, cannot be accepted as the basis for fixation of the value of the land acquired. The reference court also took note of the fact that the property covered by Ext.R1 document is located at a distance of one kilometre away from the acquired property. 7. Ext.A3 is the only document produced by the claimant before the reference court in support of her plea for enhancement of compensation for land. As per Ext.A3 document, on 28.07.2004, 18 **LA.App..No. 458 of 2014** **4** cents of land was sold for a consideration of Rs.1,35,000/- per cent. 8. On the basis of the report of the Advocate Commissioner who inspected the property covered by Ext.A3 document, the reference court has found that it is a property situated at a distance of 500 meters from the acquired property. The property covered by Ext.A3 document has no direct access from any main road. It has direct access only from a pocket road. The property acquired has got direct access from a main road. 9. The reference court also took note of the fact that the transaction under Ext.A3 document occurred nearly one year before the date of publication of the notification under Section 4(1) of the Land Acquisition Act. Having regard to the price escalation during the aforesaid period as well as the prominence of the acquired property, the reference court fixed the value of the land acquired at a rate of 30% above the value of the land shown in Ext.A3 document and fixed the value of the land acquired at Rs.4,33,485/- per Are. 10. In **Pehlad Ram v. Haryana Urban Development Authority (AIR 2014 SC 793)** , after referring to various decisions, the Apex Court has held that a cumulative increase of 10 to 15 percent per year in the market value of the land may be accepted unless the State agencies or the acquiring authority prove otherwise. **LA.App..No. 458 of 2014** **5** 11. In the instant case, the transaction covered by Ext.A3 document was on 28.07.2004. There was a gap of nine months from the date of that transaction and the date of publication of the notification. The value of the land shown in Ext.A3 document is Rs.1,35,000/- per cent, which is equivalent to Rs.3,33,450/- per Are. The land acquired is in an urban area. If the value of the land shown in Ext.A3 document is increased by 15% for the period of nine months, it would come to Rs.3,70,963/- per Are, which can be rounded off to Rs.3,71,000/- per Are. However, the fact remains that the acquired property has got direct access from a main road while the property under Ext.A3 document has got no such access. The commission report also indicates that the property acquired is situated in a locality which is commercially more important than the property covered by Ext.A3 document. Considering these aspects, if the value of the land is increased by 20%, it would come to Rs.4,45,200/- per Are (3,71,100 x120/100). The value of the land fixed by the reference court is less than this amount. The value of the land fixed by the reference court as Rs.4,33,485/- per Are would come to only about 17% over and above the value of the land (Rs.3,71,000/-) covered by Ext.A3 document. In such circumstances, we do not find any ground to interfere with the **LA.App..No. 458 of 2014** **6** enhancement of compensation for land awarded by the reference court. 12. The building, which was situated in the land acquired, was 50 years old. The report and the evidence of the Expert Engineer (AW4), who had valued the building, show that the total plinth area of the building is 877.30 sq.metres. AW4 separately assessed the value of the building and the wooden materials which form part of it. Excluding the value of the wood work, he has assessed the value of the building at Rs.6,000/- per sq.ms. The reference court found that the valuation made by the Expert Engineer is high and that the value of the building excluding the wooden work can be assessed at the rate of Rs.4,000/-sq.ms. After deducting depreciation of 50% (1% each for 50 years), the reference court assessed the value of the building at Rs.17,54,600/-, at the rate of Rs.2,000/- per sq.ms (877.300x2000). 13. The Expert Engineer separately assessed the value of the wooden materials which form part of the building at Rs.20,25,300/after depreciation at 50%. Having regard to the report of the Expert Engineer that some of the doors and windows of the building required maintenance, the reference court fixed the value of the wooden materials at Rs.9,18,875/-. **LA.App..No. 458 of 2014** **7** 14. Thus, the reference court fixed the total value of the building at Rs.26,73,475/- (17,54,600 + 9,18,875). The reference court deducted Rs.1,00,000/- towards cost of repairs from the above amount and fixed the actual value of the building at Rs.25,73,475/-. 15. However, we take note of the fact that when the value of the building which is 50 years old is calculated, excluding the wooden materials which form part of it, the value of it, after depreciation, would be practically zero. However, we are inclined to grant compensation for the value of the building, excluding the wooden materials which form part of it, after deducting depreciation of 80% for the period of 50 years. This amount would come to Rs.7,01,840/(4000x877.300x20/100). We see no ground to interfere with the compensation awarded by the reference court for the wooden materials which form part of the building. Thus, the total compensation for the building has to be reduced to Rs.16,20,715/(7,01,840 +9,18,875) 16. In the result, the appeal is allowed in part. The total compensation for the building situated in the land acquired is reduced and refixed as Rs.16,20,715/- (Rupees Sixteen lakhs twenty thousand seven hundred and fifteen only). The judgment of the reference court is modified accordingly. The award passed by the **LA.App..No. 458 of 2014** **8** reference court is confirmed on all other aspects. No costs in the appeal. **Sd/- V.CHITAMBARESH, JUDGE** **Sd/- R.NARAYANA PISHARADI, JUDGE** lsn